Dever v. Simmons
Case Date: 09/04/1997
Court: 1st District Appellate
Docket No: 1-96-2888
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FOURTH DIVISION SEPTEMBER 4, 1997 1--96--2888 GLENDA L. DEVER and ) Appeal from the DAVID DEVER, ) Circuit Court of ) Cook County Plaintiffs-Appellants, ) ) v. ) ) LINDA SIMMONS and DAVID LUBEZNIK, ) d/b/a SKYWAY TOLL PLAZA PARTNERSHIP,) and McDONALD'S CORPORATION, ) Honorable Paddy ) McNamara, Judge Defendants-Appellees. ) Presiding. JUSTICE CERDA delivered the opinion of the court: Plaintiffs, Glenda L. Dever and David Dever, appeal from the dismissal of their negligence complaint against defendants, Linda Simmons and David Lubeznik, doing business as Skyway Toll Plaza Partnership (the franchisees), and McDonald's Corporation, a Delaware corporation. The complaint was dismissed because defendants were joined after the statute of limitations expired. Plaintiffs originally filed their complaint against an incorrect defendant, McDonald's Restaurants of Illinois, Inc. Plaintiffs argue on appeal that defendants waived the statute of limitations, that defendants should have been estopped from raising the statute of limitations, and that plaintiffs' complaint should relate back to the time that their original complaint against the incorrect defendant was filed because plaintiffs inadvertently failed to name the correct defendants based in part on the confusing similarity of the names of the McDonald's entities. We affirm. FACTS On September 2, 1992, Glenda L. Dever fell outside the McDonald's restaurant at 8871 S. Kingston Avenue in Chicago. On August 29, 1994, plaintiffs filed a personal-injury complaint in the United States District Court for the Northern District of Illinois against McDonald's Restaurants of Illinois, Inc., based on the accident. The summons and the complaint were served on the registered agent for McDonald's Restaurants of Illinois, Inc., on September 2, 1994. The two-year personal-injury statute of limitations (735 ILCS 5/13--202 (West 1994)) elapsed on the same date. McDonald's Restaurants of Illinois, Inc., denied in its answer that it owned or operated the restaurant where the accident occurred. The attorney for McDonald's Restaurants of Illinois, Inc., informed the attorney for plaintiffs that the owner of the restaurant was another corporation, McDonald's Corporation. On October 13, 1994, after the statute of limitations had expired, plaintiffs filed an amended complaint in federal court naming McDonald's Corporation as defendant. On October 19, 1994, the amended complaint was served on the registered agent for McDonald's Corporation. The registered agent was the same as for McDonald's Restaurants of Illinois, Inc. McDonald's Corporation's answer admitted that it owned the restaurant but denied that it operated the restaurant. The answer did not state that there were franchisees who operated the restaurant. After the answer was filed, plaintiffs' attorney telephoned McDonald's Corporation's attorney and thereby learned that there were franchisees. On November 7, 1994, plaintiffs moved to compel disclosure of the franchisees. After service of the motion, McDonald's Corporation's attorney identified the franchisees. On December 2, 1994, plaintiffs filed a second amended complaint adding the franchisees as defendants. On April 26, 1995, the federal court dismissed the claims against the franchisees, apparently for lack of diversity jurisdiction. On May 17, 1995, pursuant to the refiling statute (735 ILCS 5/13--217 (West 1994)), plaintiffs filed a complaint in the circuit court of Cook County against the franchisees. The franchisees were served on May 25, 1995. On May 24, 1995, McDonald's Corporation was dismissed from the federal lawsuit on the basis that the franchisees were unavailable. On June 5, 1995, plaintiffs filed an amended state-court complaint naming McDonald's Corporation as an additional defendant. On July 13, 1995, all three defendants filed an appearance in the circuit court of Cook County. Plaintiffs' attorney prepared for trial in the state-court case by serving interrogatories and requests for production of documents on defendants, and by attending court hearings concerning discovery deadlines. After this preparation by plaintiffs, defendants filed on December 18, 1995, a motion to dismiss the complaint pursuant to section 2--619(5) of the Code of Civil Procedure (735 ILCS 5/2--619(5) (West 1994)), arguing that the two-year personal-injury statute of limitations (735 ILCS 5/13--202 (West 1994)) expired on September 2, 1994. Defendants stated in the motion that neither McDonald's Corporation nor the franchisees had known that the original action was pending prior to the expiration of the statute of limitations. Plaintiffs filed a memorandum in opposition to the motion to dismiss that did not argue that the amended complaint related back to the date the original action was filed. Plaintiffs did not raise the relation-back issue until their motion to reconsider the dismissal of their complaint, and they then did not provide evidence of defendants' knowledge of the original complaint. The trial court granted the motion to dismiss. After plaintiffs' motion to reconsider was denied, plaintiffs appealed. DISCUSSION The standard of review for involuntary dismissal under section 2--619 is de novo. Harinek v. City of Chicago, 283 Ill. App. 3d 491, 493, 670 N.E.2d 869 (1996). I. Waiver Plaintiffs first argue that defendants waived the statute of limitations by failing to plead it in their answer. The statute of limitations is an affirmative defense that must be pleaded and proved by a defendant. Goldman v. Walco Tool & Engineering Co., 243 Ill. App. 3d 981, 989, 614 N.E.2d 42 (1993). Section 2--613(d) of the Code of Civil Procedure requires that facts constituting any affirmative defense be plainly set forth in the answer. 735 ILCS 5/2--613(d) (West 1994). Section 2--613 is designed to prevent unfair surprise at trial. Holladay v. Boyd, 285 Ill. App. 3d 1006, 1011, 675 N.E.2d 262 (1996). The Code of Civil Procedure also permits a defendant to raise the statute of limitations in a section 2--619 motion to dismiss (735 ILCS 5/2--619(a)(5) (West 1994)). The Code thus provides a defendant with the alternative method of the motion to dismiss to raise the statute of limitations. Motions to dismiss under section 2--619 and summary judgment motions are routinely made after discovery has been completed and the parties know what the evidence is. There is no requirement in the statute that an affirmative defense must be raised in an answer before a party may move to dismiss a complaint under section 2--619 or move for summary judgment. 735 ILCS 5/2--619(a)(5)(West 1994). We hold that, even though defendants neither raised the statute of limitations in their answer nor amended their answer to raise it, defendants were permitted to raise the statute of limitations in a section 2--619 motion to dismiss. Plaintiffs argue defendants waived the statute of limitations defense by delay in filing their motion to dismiss. Waiver is the purposeful relinquishment of a known right, and it can arise either expressly or by conduct inconsistent with an intent to enforce that right. Bailey v. Petroff, 170 Ill. App. 3d 791, 798-79, 525 N.E.2d 278 (1988). Depending on the circumstances, a trial court can permit a late assertion of the statute of limitations. See Behr v. Club Med, Inc., 190 Ill. App. 3d 396, 407, 546 N.E.2d 751 (1989) (when the statute of limitations was first raised in an amended answer three years after the amended complaint, the court considered that the trial had not yet begun, that the defense did not require further investigation by either party, and that a finding that the statute of limitations had elapsed would eliminate the necessity of a trial). Behr, 190 Ill. App. 3d at 407, also pointed out: "The failure to plead an affirmative defense, such as a statute of limitations, does not constitute waiver. Rather, a trial court may, in its sound discretion, allow a defendant to file an amended answer raising affirmative matter anytime prior to the entry of a final judgment." Further, a motion to dismiss is distinct from an answer. Filing a motion to dismiss does not preclude later filing an answer, and filing an answer does not preclude later filing a section 2--619 motion to dismiss. Outlaw v. O'Leary, 161 Ill. App. 3d 218, 220, 515 N.E.2d 208 (1987); Stewart v. County of Cook, 192 Ill. App. 3d 848, 858, 549 N.E.2d 674 (1989). We find that filing an affirmative defense in an answer raising the statute-of-limitations expiration is not a prerequisite for a motion to dismiss under section 2--619. But a long delay in raising the statute of limitations can be the basis for finding waiver. E.g., Turner v. Cosmopolitan National Bank, 180 Ill. App. 3d 1022, 1028-29, 536 N.E.2d 806 (1989) (statute of limitations raised in summary judgment motion 3 |